Case Summaries – Page 357 – Electronic Discovery Law

United States v. Worthington, ARMY 20040396, 2006 WL 6625258 (A. Ct. Crim. App. Sept. 18, 2006)

Dec 01 2006

Key Insight: Emails properly authenticated by: name of alleged sender in email address (brian.worthing@us.army.mil), by testimony that recipient recognized return address and had previously received emails from the same, by testimony that the emails were consistent with the way appellant talked and by testimony that the emails were consistent with conversations and experiences of the alleged sender, e.g. the first email referred to defendant?s loss of his wallet in Kuwait, an event that was corroborated by a testifying witness

Nature of Case: Court martial

Electronic Data Involved: Emails

Waltzer v. Tradescape & Co., L.L.C., 819 N.Y.S.2d 38 (N.Y. App. Div. 2006)

Dec 01 2006

Key Insight: Defendants’ failure to comply with six separate court orders to produce personal documents and electronic documents in the possession of two law firms that had formerly represented defendants, coupled with inadequate excuses for those defaults, warranted striking of their answer

Electronic Data Involved: CDs containing electronic documents

Clever View Invs., Ltd. v. Oshatz, 2006 WL 305467 (S.D.N.Y. Feb. 8, 2006)

Dec 01 2006

Key Insight: Magistrate ordered parties to share cost of $15,182 hard copy production (responding party to pay 60 percent and requesting party to pay 40 percent) where parties failed to seek assistance from the court prior to the copying, and where some of the reproduction was unnecessary since much of the information was available through other means, including on CD

Nature of Case: Trademark infringement

Electronic Data Involved: CD containing purchase orders

MGE UPS Sys., Inc. v. Fakouri Elec. Eng’g, Inc., 2006 WL 686577 (N.D. Tex. Mar. 17, 2006)

Dec 01 2006

Key Insight: Court denied plaintiff’s motion for summary judgment and dismissal of opponent’s counterclaims and affirmative defenses based upon spoliation of evidence described as “intentionally modifying and deleting files from the laptops central to this case,” finding that evidence was “far from clear-cut” that defendants destroyed evidence sufficient to warrant a death-penalty sanction

Nature of Case: Copyright infringement, misappropriation of trade secrets and other claims

Electronic Data Involved: Files on laptops

Virgin Records Am., Inc. v. Does 1-35, 2006 WL 1028956 (D.D.C. Apr. 18, 2006)

Dec 01 2006

Key Insight: Court denied without prejudice Doe defendant’s motion to quash subpoena issued to defendant’s ISP which argued that court lacked personal jurisdiction over defendant, since consideration of personal jurisdiction was premature and plaintiffs had made prima facie showing of personal jurisdiction over defendant

Nature of Case: Record companies brought infringement action arising out of internet file sharing of digital sound recordings

Electronic Data Involved: IP logs maintained by Internet Service Provider

Oved & Assocs. Constr. Servs., Inc. v. Los Angeles County Met. Transp. Auth., 2006 WL 1703824 (Cal. App. June 22, 2006) (Nonpublished, Noncitable)

Dec 01 2006

Key Insight: No abuse of discretion to impose terminating sanctions against plaintiff after years of “discovery stonewalling” which culminated in the intentional destruction of evidence; plaintiff “regularly and routinely” disobeyed trial court orders and intentionally destroyed relevant accounting records on hard drive that was to be mirror imaged

Nature of Case: Misappropriation of funds

Electronic Data Involved: Accounting files on hard drive

A/R Roofing, L.L.C. v. Certainteed Corp., 2006 WL 2381610 (D. Kan. Aug. 16, 2006)

Dec 01 2006

Key Insight: Where the font used by plaintiff’s expert in his hard copy list of customer estimates and contracts was ?incredibly small? and difficult to read without magnification, thus rendering hard copy list inadequate, and because defendant’s request for production of material in electronic form was not otherwise prohibited by scheduling order, court granted defendant’s motion to compel the data in electronic format

Nature of Case: Plaintiff claimed loss of business resulting from letter sent by defendant

Electronic Data Involved: Customer list

Frees, Inc. v. McMillian, 2006 WL 2668843 (E.D. Tenn. Sept. 15, 2006)

Dec 01 2006

Key Insight: Court narrowed subpoena to defendant’s new employer, setting out “tiered discovery” process: plaintiff was to identify at least one project involving files allegedly removed from disputed laptop; new employer would then search for documents and/or files of the type described that were related to that project and produce them; if any of the produced documents and/or files were shown to be relevant or reasonably calculated to lead to the discovery of admissible evidence, then the parties would proceed to the ?second tier? of discovery and plaintiff could then request documents related to other projects; if no responsive documents could be found with respect to the first identified projects, however, plaintiff would be required to make a sufficient showing to the court as to why discovery should proceed further

Nature of Case: Design firm sued former vice president under Computer Fraud and Abuse Act

Electronic Data Involved: Proprietary business and technological data

Plasse v. Tyco Elecs. Corp., 2006 WL 3445610 (D. Mass. Nov. 8, 2006)

Dec 01 2006

Key Insight: In follow up to earlier decision dismissing complaint as sanction for plaintiff’s discovery misconduct, court awarded defendant $35,000 in attorneys’ fees and full costs of $20,472 since forensic computer experts were “particularly necessary to uncover plaintiff’s skulduggery”

Nature of Case: Wrongful termination

Electronic Data Involved: Laptop; drafts of plaintiff’s resume

Malletier v. Dooney & Bourke, Inc., 2006 WL 3851151 (S.D.N.Y. Dec. 22, 2006)

Dec 01 2006

Key Insight: Court directed defendants to confirm in writing whether it searched particular email accounts or conduct such search if it had not already done so; court further denied plaintiff’s request for spoliation sanctions based upon defendant’s alleged failure to preserve chat room comments since it was highly unlikely that any comments by members of the public that would be pertinent to the lawsuit would have been received, since chat room was opened after relevant time period and technology to save chat room comments was not installed until over a year later

Nature of Case: Trademark infringement

Electronic Data Involved: Chat room comments; email

Catagory:Case Summaries